The People of the State of New York ex rel. Henry C. Corsa, Respondent, v. George E. Waring, Jr., Commissioner of Street Cleaning of the City of New York, Appellant

The People of the State of New York ex rel. Henry C. Corsa, Respondent, v. George E. Waring, Jr., Commissioner of Street Cleaning of the City of New York, Appellant. New York — the street cleaning commissioner may discharge an employee in his discretion — the veteran acts do not apply. The street cleaning act relative to the city of New York (Chap. 269 of 1892) empowers the commissioner of street cleaning to dismiss, at his discretion, an employee for a violation of duty. No particular kind of evidence is required, and to justify a dismissal by the commissioner it is only necessary that the evidence be satisfactory to him. The acts relative to veterans do not apply to the employees of the street cleaning department of the city of New York. Appeal by the defendant, George E. Waring, Jr., commissioner of street cleaning of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1896, granting a peremptory writ of mandamus requiring-Mm to reinstate the relator in the position of district superintendent in the department of street cleaning in the city of New York. The relator having been removed from his position by the commissioner, was reinstated August 22,1895, and directed to report for duty on the next day to the superintendent of street cleaning. August 29, 1895, the superintendent reported to the commissioner that the relator had been absent from duty without leave since August 23,1895. Thereupon the commissioner, • on the same day for this reason dismissed the relator from the service. The relator was an honorably discharged soldier who had served in the Union army during the war of the rebellion. Upon the relator’s motion the court made an order directing the issue of the writ of peremptory mandamus. From that order this appeal is taken. Francis M. Scott and James M. Ward, for the appellant. Charles Blandy and Lewis C. Freeman, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: The order appealed from must be reversed. The People ex rel. Lee v. Waring (1 App. Div. 594, decided by this court; affd. by Court of Appeals, 149 N. Y. 621) is conclusive upon all the questions involved in. the present case.' We held in that case that the relator was not entitled to the protection of the Veteran Act, in reliance upon which the court made the order here appealed from, but that the power tó dismiss for a violation of duty, when in his discretion it should seem advisable, was given to the commissioner of street cleaning by the Street Cleaning Act (Laws of 1892, chap. 269). We also held in that case that no particular species of evidence was required under the Street Cleaning Act to enable the commissioner to dismiss the relator; that it was only required to be satisfactory to the head of the department. In that case the deputy commissioner recommended in writing that the relator be dismissed on charges and specifications, and the commissioner believed the charges, to be true upon information which he had received, and this we held was sufficient. Here the superintendent reported that the relator had been absent from duty for five days without leave, and it was true.. There was a dispute -as to .whether he was absent by reason of some arrangement between-the commissioner and. the relator’s attorney, but we do not think the court could determine whether the evidence on which the commissioner acted in dismissing the relator was satisfactory to him. And, moreover, the decision of the court was not put on such ground, but on the ground that the relator was protected under the Veteran Act, which was untenable. • The order appealed from should be reversed and the writ dis-' misséd, with costs. Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred. Order reversed and writ dismissed, with costs.